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Disability-Selective Abortion and the Americans with Disabilities Act

61 Pages Posted: 19 Mar 2009 Last revised: 7 Aug 2012

Dov Fox

University of San Diego: School of Law

Christopher L. Griffin Jr.

Harvard Law School

Date Written: November 20, 2009


We explore the collateral impact that law can have on conduct it does not regulate: a concept that we called expressive externalities. We examine this phenomenon through the relationship between the Americans with Disabilities Act and the incidence of abortion after a diagnosis of Down syndrome. Applying regression analysis to natality data to control for fetal testing rates, prenatal care history, and demographic data, we find a statistically significant decline in Down syndrome birthrates by approximately 15 children per 100,000 after the ADA was passed. Our findings suggest that the ADA may have prevented the existence of the very people it was designed to protect. We explain this paradox by showing how media coverage of people with disabilities surrounding the ADA’s enactment reinforced negative expectations about raising a child with Down syndrome. Our study reveals the unintended effects that civil rights law can have on ostensibly unrelated conduct.

Keywords: ADA, expressive law theory, genetic testing, disability birthrates

JEL Classification: C25, I18, J13, J71

Suggested Citation

Fox, Dov and Griffin, Christopher L., Disability-Selective Abortion and the Americans with Disabilities Act (November 20, 2009). Utah Law Review, p. 845, 2009. Available at SSRN:

Dov Fox (Contact Author)

University of San Diego: School of Law ( email )

5998 Alcalá Park
San Diego, CA 92110
United States
(619) 260-4600 (Phone)


Christopher Griffin

Harvard Law School ( email )

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